Supreme Court: Taking note of the fact that in several cases where
poisoning is suspected, the prosecuting agencies are not taking steps to
obtain viscera report, the 2-judge bench of Hon’ble Ranjana Prakash
Desai and J. Chelameswar, JJ directed the prosecuting agencies to send
the viscera to the Forensic Science Laboratory (FSL) for examination
immediately after the post-mortem and the FSL should then ensure that
the viscera is examined immediately and report is sent to the investigating
agencies/courts post haste. The Court said that the non-compliance of
the said direction would empower the Criminal Courts to summon the
concerned officer. Considering the tendency of the witnesses to turn
hostile, the Court said that these scientific tests are of vital
importance to a criminal case and the Investigating Officer, the
Prosecutor and the Court should work in sync in order to cope up with
such lapses. The Court gave the said direction upon noticing the fact
that in the short span of 2 months, it was dealing with the third case
where viscera report was not brought on record either due to
inadvertence or with the intent to frustrate the prosecution. [Joshinder
Yadav v. State of Bihar, Criminal Appeal No. 259 of 2009, decided on
January 20, 2014]
Print Page
(SMT.) RANJANA PRAKASH DESAI, J.
1.
The appellant who was arraigned as Accused 2 was tried along with five
other accused for offences punishable under Sections 498A and 302 read
with Sections 149 and 201 of the IPC by the 1st Additional Sessions
Judge, Madhepura. The allegations against the accused, inter alia, were
that they subjected one Bindula Devi to cruelty and harassment with a
view to coercing her and her other relatives to meet their unlawful
demand of property and that on her failure to fulfill their unlawful
demand, in furtherance of their common object, they committed her murder
and that they caused disappearance of her dead body with an intention
to screen themselves from legal punishment.
2.
Bindula Devi was married to Accused 1 Jaipraksh Yadav. The appellant and
Accused 3 Shakun Devo Yadav are the brothers of Accused 1 Jaiprakash
Yadav. Accused 4 Dani Dutta Yadav is their father and Accused 5 Satya
Bhama Devi is their mother. Accused 6 Fudai Yadav is brother-in-law of
Accused 1 Jaiprakash Yadav.
3.
The prosecution story is reflected in the evidence of Complainant PW-9
Debu Yadav, the father of Bindula Devi. He stated that his daughter
Bindula Devi was married to Accused 1 Jaiprakash Yadav. He further
stated that in the marriage one buffalo, one cow and one bullock were
given as dowry to the accused as per their demand. However, the accused
were not satisfied with that. They demanded a wrist watch and a cycle
which were given to them. Even then they continued to harass and assault
Bindula Devi. She gave birth to a male child. The accused kept Bindula
Devi in their house and sent the child to his house so that he would
rear the child. PW-9 Debu Yadav further stated that when in Ashwin month
he brought Bindula Devi to his house she told him about the
ill-treatment meted out to her at her matrimonial home. She did not want
to go back.
He
tried to pacify her. He transferred two kathas of land in her name. She
then went to her matrimonial home. The accused insisted that she should
sell the land. As she did not agree to selling of the land, they
subjected her to further torture. PW-9 Debu Yadav further stated that on
a Monday at about 4.00p.m. Accused 6 Fudai Yadav came to his house and
enquired whether Bindula Devi had come there and told him that she had
run away from the house. He told Accused 6 Fudai Yadav that Bindula Devi
would not run away from her house. He then proceeded to the house of
the accused situated in village Kolhua along with his son Sachindra
Yadav and his brother-in-law. Accused 6 Fudai Yadav accompanied them for
some distance and then left for some other place.
They
reached Kolhua village and found the house of the accused to be empty.
All the accused had left the house with their belongings. Bindula Devi
was also not present. On enquiry the neighbours told him that because
Bindula Devi had refused to transfer the land in the accused's name they
had administered poison to her and murdered her. Hemet Sub-Inspector of
Police by the river side who recorded his statement. A search was
conducted. The dead body of Bindula Devi was recovered from the river
bed. Formal FIR of PW-9 Debu Yadav was registered on 31/1/1989and the
investigation was started. The appellant, Accused 1 JaiprakashYadav and
Accused 3 Shakun Devo Yadav surrendered before the court on6/3/1989.
Accused 4 Dani Dutta Yadav surrendered before the court on26/8/1989.
4. At
the trial, though, the prosecution examined 13 witnesses, it's case
rested on the evidence of PW-9 Debu Yadav, father of the deceased
andPW-10 Sachindra Yadav, brother of the deceased. PWs-2 to 7 turned
hostile. The accused pleaded not guilty to the charge. They contended
that when Bindula Devi went to take bath, she slipped in the water, got
drowned anddied.
5.
The trial court convicted the accused under Section 302 read with
Section 149 of the IPC and sentenced each of them to suffer life
imprisonment. They were also convicted under Section 498A of the IPC and
sentenced to undergo rigorous imprisonment for three years each. They
were further convicted and sentenced to undergo rigorous imprisonment
for seven years each under Section 201 of the IPC. All the substantive
sentences were ordered to run concurrently. The High Court dismissed
their appeal. Hence, this appeal, by special leave, by Accused 2.
6.
Mr. Gaurav Agrawal, learned counsel for the appellant submitted that the
instant case rests on circumstantial evidence. Counsel pointed out that
the appellant is the brother of Accused 1 Jaiprakash Yadav, the husband
of Bindula Devi. PW-10 Sachindra Yadav stated in his evidence that
Accused 1 had separated from his other brothers. There is no evidence on
record to establish that the appellant was party to any dowry demand or
to any ill-treatment meted out to Bindula Devi.
Counsel
submitted that incases where apart from husband other members of his
family are charged with offences under Sections 304B, 302 and 498A of
the IPC and the case rests on circumstantial evidence, unless the
circumstantial evidence is of required standard conviction cannot be
based on it. In this connection he relied on Vithal Tukaram More &
Ors. v. State of Maharashtra[1]. Counsel submitted that allegations
about motive are vague. Medical evidence is inconclusive. The
prosecution has, therefore, failed to establish its case. In any case,
since the appellant was residing separately, in the absence of any
clinching evidence establishing his complicity he cannot be convicted.
7.
Mr. Gopal Singh, learned counsel for the State of Bihar on the other
hand submitted that the evidence on record establishes that all the
accused were staying in houses situated in the same courtyard. Counsel
submitted that evidence of PW-9 Debu Yadav and PW-10 Sachindra Yadav
establishes the prosecution case. Pertinently, the accused did not lodge
any complaint to the police. The fact that they left the house with all
their belongings suggests their complicity. Counsel submitted that
Bindula Devi disappeared from the house of the accused. As to how she
died in suspicious circumstances was within the knowledge of the
accused. The burden was shifted to the accused which they have not
discharged. Adverse inference must be drawn against the accused. In this
connection, counsel relied on Balaram Prasad Agrawal v. State of Bihar
& Ors[2]. Counsel submitted that appeal be, therefore, dismissed.
8. We
have already referred to the evidence of father of Bindula Devi PW-9
Debu Yadav. He has given a graphic account of the harassment and
ill-treatment meted out to the deceased by the accused. They were not
happy with a bullock, a cow and a buffalo which were given as dowry.
They asked for a watch and a cycle. That was also given. They asked for
more. PW-9Debu Yadav transferred 2 kathas of land to Bindula Devi. The
accused wanted to sell it or wanted it to be transferred in their names
and since Bindula Devi did not agree to that they continued to torture
her.
Her
son was sent to her father so that he would be brought up by him, but
she was kept in the matrimonial house obviously to work. PW-10 Sachindra
Yadav the brother of Bindula Devi has corroborated his father. It is
distressing to note that all the other witnesses, that is PW-2 to PW-7
turned hostile. In the facts of this case, it is indeed a pointer to the
guilt of the accused. They won over the prosecution witnesses. We note
with some anguish the following sentences uttered by PW-9 Debu Yadav in
his cross-examination probably as an answer to the usual question about
there being no independent witness to depose about cruelty.
He
stated "whenever my daughter visited my house, she used to complain
that she is being tortured and assaulted there. Who else can be a
witness to this fact?" Having perused the evidence of PWs-9 and 10 we
have no manner of doubt that Bindula Devi was subjected to cruelty and
harassment for dowry by the accused. Evidence of these witnesses is
straightforward and honest. There is no exaggeration. In the
cross-examination their evidence has not suffered any dent. Implicit
reliance can be placed on them.
9. It
is submitted that the appellant had separated from Accused 1Jaiprakash
Yadav and, hence, he cannot be a party to the alleged acts of cruelty of
the other accused. We find no substance in this submission. Though,
PW-10 Sachindra Yadav stated that Accused 1 Jaiprakash Yadav had
separated from his brothers after marriage, he has clarified that all
the brothers have their houses in a common courtyard. PW-9 Debu Yadav
has specifically named the appellant as a person who demanded cattle. He
has stated that the accused were not satisfied with the cattle given by
him. They demanded more dowry. They used to harass and assault Bindula
Devi. He stated that when he went to the house of the accused after
receiving information that she had left their house, he found the house
to be empty.
All
the accused had absconded. They had taken their belongings with them.
This is confirmed by PW-13 Surendra Rai the Investigating Officer. He
stated that when he went to the house of the accused after receiving
information about disappearance of Bindula Devi he found the house
completely empty. Even the household articles and food grains were
missing. The accused were not present. No member of their family was
present. Bindula Devi was also not present. These circumstances persuade
us to reject the submission that the appellant did not join the other
accused in treating Bindula Devi with cruelty. The conviction and
sentence of the appellant under Section 498A of the IPC is therefore
perfectly justified.
10.
We now come to the death of Bindula Devi. PW-9 Debu Yadav and
PW-10Schindra Yadav stated that dead body of Bindula Devi was recovered
from the river bed. The Investigating Officer PW-13 Surendra Rai stated
that after recording the FIR of PW-9 Debu Yadav, he inspected the house
of Accused 1Jaiprakash Yadav. The dead body of Bindula Devi was found
lying 600 yards away from the house of the accused. It was lying in one
foot deep water, close to the southern bank of the river, near a ferry.
The ferry was situated adjacent to the maize field of Hazari Mandal. He
took it out and prepared inquest report. He further stated that one
Vinod stated that on29/1/1989, the accused had a meeting. On 30/1/1989,
they left for some other place and in the evening it was revealed that
they had killed Bindula Devi by poisoning her and had thrown her dead
body at the ferry. The Investigating Officer further stated that Vinod,
Parmeshvari Yadav, BrijBihari Yadav also confirmed this fact. All these
persons turned hostile in the court.
11. PW-12 Dr. Arun Kumar Mandal did the post-mortem on the dead body of Bindula Devi. Following are his observations:
"1. (1) Epistax is from both nostrils.
2) Blood mixed with froth from mouth.
3) Both eye balls congested, cornea hazy.
4) Face congested and cyanosed.
5) Skin of both hands and feet were corrugated.
2. On
opening of skull all the blood vessels were congested in the maninges
and brain matter. 3. In the chest both the lungs were found congested,
frothy and spongy and on cutting blood stains froth found in segments.
4. In the heart both chambers were found full. 5. In the stomach
semi-digested food about 4 ounces with blood mixed. 6. In the small
intestine-gas and solid facees.
7. In the large intestine-gas and solid facees.
8. In the case of kidneys both were found congested.
9. Liver an spleen were also found congested.
10. Uterus contained about full term dead male baby."
PW-12
Dr. Arun Kumar Mandal opined that the cause of death was asphaxia due
to drowning. He stated that in cases of drowning, if immediate death is
caused, then, there will be negligible quantum of water in the stomach.
He further stated that death may be caused even in one foot deep water
if the victim is kept in water with his neck pressed in sleeping
position. It may be stated here that report of the viscera examination
is not on record. Dr. Mandal has admitted that he did not know the
result of viscera examination. He added that there were no injuries on
the person of the deceased.
12.
In our opinion, the evidence of the father and the brother of Bindula
Devi and other attendant circumstances such as strong motive; the fact
that the accused did not lodge any complaint about missing of Bindula
Devi; that Accused 6 Fudai Yadav went to the house of PW-9 Debu Yadav to
enquire about Bindula Devi and then suddenly deserted PWs 9 and 10 when
they were going to the house of the accused, that all the accused
absconded fromtheir house with their belongings and that the house was
completely empty, lead to an irresistible conclusion that the accused
were responsible for the death of Bindula Devi.
13.
It is submitted that since there were no injuries on the dead body of
Bindula Devi, it would be wrong to conclude that Bindula Devi was kept
in water in a sleeping position with her neck pressed as suggested by
the doctor. The prosecution story that the accused caused her death must
therefore be rejected. Medical evidence, it is argued, does not support
the prosecution case.
14.
In our opinion, the prosecution having established that the accused
treated the deceased with cruelty and that they subjected her to
harassment for dowry, the accused ought to have disclosed the facts
which were in their personal and special knowledge to disprove the
prosecution case that they murdered Bindula Devi. Section 106 of the
Evidence Act covers such a situation.
The
burden which had shifted to the accused was not discharged by them. In
this connection, we may usefully refer to the judgment of this Court in
Shambhu Nath Mehra v. State of Ajmer[3] where this Court explained how
Section 101 and Section 106 of the Evidence Act operate. Relevant
portion of the said judgment reads thus:
"(10)
Section 106 is an exception to Section 101. Section 101 lays down the
general rule about the burden of proof. 'Whoever desires any Court to
give judgment as to any legal right or liability dependent on the
existence of facts which he asserts, must prove that those facts exist'.
Illustration (a) says - 'A desires a Court to give judgment that B
shall be punished for a crime which A says B has committed. A must prove
that B has committed the crime'.
(11)
This lays down the general rule that in a criminal case, the burden of
proof is on the prosecution and Section 106 is certainly not intended to
relieve it of that duty. On the contrary, it is designed to meet
certain exceptional cases in which it would be impossible, or at any
rate disproportionately difficult, for the prosecution to establish
facts which are 'especially' within the knowledge of the accused and
which he could prove without difficulty or inconvenience."
15.
In Balram Prasad Agrawal v. State of Bihar[4], the prosecution had
established the cruel conduct of the accused i.e. her husband and
members of his family and the sufferings undergone by the deceased at
their hands. The unbearable conduct of the accused ultimately resulted
in her death by drowning in the well in the courtyard of the accused's
house. This Court observed that what happened on the fateful night and
what led to the deceased's falling in the well was wholly within the
personal and special knowledge of the accused. But they kept mum on this
aspect. This Court observed that it is true that the burden is on the
prosecution to prove the case beyond reasonable doubt.
But
once the prosecution is found to have shown that the accused were guilty
of persistent conduct of cruelty qua the deceased spread over years as
was well established from the unshaken testimony of father of the
deceased, the facts which were in the personal knowledge of the accused
who were present in the house on that fateful night could have been
revealed by them to disprove the prosecution case. This Court observed
that the accused had not discharged the burden which had shifted to them
under Section 106 of the Evidence Act. While coming to this conclusion,
this Court relied on Shambhu Nath Mehra.
16.
In the present case, the deceased was admittedly in the custody of the
accused. She disappeared from their house. As to how her dead body was
found in the river was within their special and personal knowledge. They
could have revealed the facts to disprove the prosecution case that
they had killed Bindula Devi. They failed to discharge the burden which
had shifted to them under Section 106 of the Evidence Act. The
prosecution is not expected to give the exact manner in which the
deceased was killed. Adverse inference needs to be drawn against the
accused as they failed to explain how the deceased was found dead in the
river in one foot deepwater.
17.
Pertinently, the post-mortem notes do not indicate presence of huge
amount of water in the dead body. According to PW-12 Dr. Mandal, in a
case of drowning, if immediate death is caused, then, there will be
negligible quantum of water in the stomach. From the evidence of PW-12
Dr. Mandal, it appears that the death of Bindula Devi occurred
immediately after she was drowned in the water because there was not
much water in her stomach. It is also pertinent to note that Bindula
Devi was pregnant. Her uterus contained full term dead male baby. She
could not have, therefore, offered any resistance. It appears that,
therefore, there were no injuries on the dead body.
The
whole operation appears to have been done swiftly and skillfully. But in
any case, as stated hereinabove, it is not for the prosecution to
explain in what manner Bindula Devi was done to death by the accused
because Bindula Devi was staying in the house of the accused prior to
the occurrence and she disappeared from that house. All the
circumstances leading to her unnatural death were within the special and
personal knowledge of the accused which they chose not to disclose.
Instead, they gave a totally false explanation that when Bindula Devi
had gone for bath, she slipped, got drowned in the water and died. This
story is palpably false. The false explanation offered by the accused
further strengthens the prosecution case as it becomes an additional
link in the chain of circumstances.
18.
It is true that in Vithal Tukaram More this Court has held that in a
case where other members of the husband's family are charged with
offences under Sections 304B, 302 and 498A of the IPC and the case rests
on circumstantial evidence, the circumstantial evidence must be of
required standard if conviction has to be based on it. We are of the
considered opinion that the evidence adduced by the prosecution in this
case is of required standard. No other inference, except that of the
guilt of the accused, is possible on the basis of the evidence on
record. The established facts are consistent only with the hypothesis of
their guilt and inconsistent with their innocence. The appeal,
therefore, deserves to be dismissed.
19.
Before we part, we must refer to a very vital aspect of this case.PW-9
Debu Yadav, the father of Bindula Devi stated that the neighbours told
him that Bindula Devi was poisoned by the accused. PW-10 Sachindra
Yadav, brother of Bindula Devi has also stated so. PW-13 Surendra Rai,
the Investigating Officer went a step further. He stated that Vinod
Yadav, Shiv Pujan Ram, Vinod Kumar Mehta, Parmeshwar Yadav and Braj
Bihari Yadav told him that the accused had killed Bindula Devi by
poisoning her; that they had concealed the dead body in the river and
had run away. Unfortunately, these witnesses turned hostile. But the
fact remains that the prosecution had come out with a case of poisoning.
It was, therefore, necessary for the prosecution to get the viscera
examined from Forensic Science Laboratory ("the FSL").
20.
The trial court has observed that the Investigating Officer had filed a
petition on 19/4/1988 requesting the doctor to send the viscera for
chemical analysis to the FSL, Patna. Post-mortem notes mention that
viscera was protected for future needs. This is also stated by PW-12 Dr.
Mandal. Dr. Mandal has, however, added that he did not know the result
of viscera examination. From the evidence of the Investigating Officer,
PW-13Surendra Rai, it appears that the doctor did not send the viscera
to the FSL. When he was questioned about the viscera report, the
Investigating Officer stated in the cross-examination that a letter had
been sent to the doctor about viscera examination. He further stated
that he did not make any complaint against the doctor to the senior
officers, but, informed his officer through diary. We are of the opinion
that the doctor ought to have sent the viscera to the FSL when he was
requested to do so. On his failure to do so, the Investigating Officer
should have informed his superior officer and taken steps to ensure that
viscera is sent to the FSL rather than just making a diary entry. Such a
supine indifference has a disastrous effect on the criminal justice
administration system.
21.
We are aware that in some cases where there is other clinching evidence
on record to establish the case of poisoning, this Court has proceeded
to convict the accused even in the absence of viscera report. In
Bhupendra v. State of Madhya Pradesh,[5] this Court was concerned with a
case where the viscera report was not on record, but, there was enough
evidence of poisoning. The accused was charged under Sections 304-B
and306 of the IPC. Drawing support from the presumptions under Sections
113Band 113A of the Evidence Act, 1872 and, after referring to relevant
judgments on the point, this Court held that death of the deceased was
caused by poisoning.
The
relevant observation of this Court could be quoted. "26. These decisions
clearly bring out that a chemical examination of the viscera is not
mandatory in every case of a dowry death; even when a viscera report is
sought for, its absence is not necessarily fatal to the case of the
prosecution when an unnatural death punishable under Section 304-B of
the IPC or under Section 306 of the IPC takes place; in a case of an
unnatural death inviting Section 304-B of the IPC (read with the
presumption under Section 113-B of the Evidence Act, 1872) or Section
306 of the IPC (read with the presumption under Section 113-A of the
Evidence Act, 1872) as long as there is evidence of poisoning,
identification of the poison may not be absolutely necessary."
22.
In Chhotan Sao & Another v. State of Bihar,[6] this Court was
dealing with a case involving Sections 304-B and 498A of the IPC. The
allegations were that the deceased was murdered by poisoning her. The
viscera report was not on record. There was no other evidence on record
to establish that the deceased was poisoned. This Court distinguished
the case before it from the facts of Bhupendra and while acquitting the
accused of the charge under Section 304-B of the IPC made the following
pertinent observations:
"17.
Before parting with the appeal, we wish to place on record our anguish
regarding the inadequacy of investigation, the failure to discharge the
responsibility on the part of the public prosecutor and the Magistrate
who took cognizance of the offence under Section 304-B. The
Investigating Officer who submitted the charge sheet ought not to have
done it without securing the viscera report from the forensic lab and
placing it before the Court. Having regard to the nature of the crime,
it is a very vital document more particularly in the absence of any
direct evidence regarding the consumption of poison by the deceased
Babita Devi. Equally the public prosecutor failed in his responsibility
to guide the investigating officer in that regard.
Coming
to the magistrate who committed the matter to the Sessions Court, he
failed to apply his mind and mechanically committed the matter for
trial. Public prosecutors and judicial officers owe a greater
responsibility to ensure compliance with law in a criminal case. Any
lapse on their part such as the one which occurred in the instant case
is bound to jeopardize the prosecution case resulting in avoidable
acquittals. Inefficiency and callousness on their part is bound to shake
the faith of the society in the system of administration of criminal
justice in this country which, in our opinion, has reached considerably
lower level than desirable."
23.
We must note that this is the third case which this Court has noticed in
a short span of two months where, in a case of suspected poisoning,
viscera report is not brought on record. We express our extreme
displeasure about the way in which such serious cases are dealt with. We
wonder whether these lapses are the result of inadvertence or they are a
calculated move to frustrate the prosecution. Though the FSL report is
not mandatory in all cases, in cases where poisoning is suspected, it
would be advisable and in the interest of justice to ensure that the
viscera is sent to the FSL and the FSL report is obtained.
This
is because not in all cases there is adequate strong other evidence on
record to prove that the deceased was administered poison by the
accused. In a criminal trial the Investigating Officer, the Prosecutor
and the Court play a very important role. The court's prime duty is to
find out the truth. The Investigating Officer, the Prosecutor and the
Courts must work in sync and ensure that the guilty are punished by
bringing on record adequate credible legal evidence. If the
Investigating Officer stumbles, the Prosecutor must pull him up and take
necessary steps to rectify the lacunae.
The
Criminal Court must be alert, it must oversee their actions and, in
case, it suspects foul play, it must use its vast powers and frustrate
any attempt to set at naught a genuine prosecution. Perhaps, the instant
case would have been further strengthened had the viscera been sent to
the FSL and the FSL report was on record. These scientific tests are of
vital importance to a criminal case, particularly when the witnesses are
increasingly showing a tendency to turn hostile. In the instant case
all those witnesses who spoke about poisoning turned hostile. Had the
viscera report been on record and the case of poisoning was true, the
prosecution would have been on still firmer grounds.
24.
Having noticed that, in several cases where poisoning is suspected, the
prosecuting agencies are not taking steps to obtain viscera report, we
feel it necessary to issue certain directions in that behalf. We direct
that in cases where poisoning is suspected, immediately after the
post-mortem, the viscera should be sent to the FSL. The prosecuting
agencies should ensure that the viscera is, in fact, sent to the FSL for
examination and the FSL should ensure that theviscera is examined
immediately and report is sent to the investigating agencies/courts post
haste. If the viscera report is not received, the concerned court must
ask for explanation and must summon the concerned officer of the FSL to
give an explanation as to why the viscera report is not forwarded to the
investigating agency/court. The criminal court must ensure that it is
brought on record.
25.
We have examined the merits of the case and held that the appeal
deserves to be dismissed. In the circumstances, the appeal is dismissed.
26. A
copy of this order be sent to the Registrar Generals of all the High
Courts with a direction to circulate the same to all subordinate
Criminal Courts; to the Director of Prosecution, to the Secretary,
Ministry of Home Affairs, to the Secretary, Home Department and to the
Director, Forensic Science Laboratory within the jurisdiction of the
respective High Courts.
.................................J. (Ranjana Prakash Desai)
.................................J. (J. Chelameswar)
New Delhi;
January 20, 2014.
[1] (2002) 7 SCC 20
[2] (1997) 9 SCC 338
[3] AIR 1956 SC 404
[4] (1997) 9 SCC 338
[5] 2013 (13) SCALE 52
[6] 2013 (15) SCALE 338
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